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2022 DIGILAW 1285 (AP)

Gundluru Sreenivasulu, S/o Late Subbachari v. Gundluru Bhagyamma, W/o Late Subramanyam Achari

2022-11-15

SUBBA REDDY SATTI

body2022
ORDER : Defendant Nos.5 and 6 in the suit filed the present civil revision petition under Article 227 of the Constitution of India aggrieved by common order, dated 10.03.2022 passed in I.A.Nos. 36, 37 and 38 of 2022 in O.S.No.52 of 2009 respectively on the file of learned Senior Civil Judge, Piler. 2. Respondent herein being the plaintiff filed O.S.No.52 of 2009 on the file of learned Senior Civil Judge, Piler, to declare that plaintiff has got right and title over 3/4th share in ‘A’ schedule properties and half share in ‘B’ schedule properties and to partition and deliver possession of the same etc. 3. In the plaint, plaintiff contended inter alia that she is wife and defendant No.1 in the suit is mother of deceased Subramanyam Achari; that ‘A’ schedule properties are ancestral and joint family properties of Subramanyam Achari and his son Nagendra; that both are having half share; that Nagendra, died intestate, unmarried, on 18.05.1994 leaving behind him the plaintiff as sole legal heir; that plaintiff succeeded to his half share in ‘A’ schedule properties; that Subramanyam Achari, husband of the plaintiff died intestate on 24.07.1996 leaving behind the plaintiff and defendant No.1 in the suit as his legal heirs; thus, plaintiff got 3/4th share in ‘A’ schedule property and that defendant No.1 is entitled for remaining 1/4th share of ‘A’ schedule properties; that ‘B’ schedule properties are self acquired properties of deceased Subramanyam Achari and hence, both defendant No.1 and plaintiff are entitled to half share; that defendant No.1 got issued legal notice claiming entire property and denied share to the respondent/plaintiff under Will, dated 28.02.1992 said to have been executed by deceased Subramanyam Achari; that Subramanyam Achari filed O.P.No.17 of 1989 and obtained ex parte decree of divorce behind the back of the plaintiff; that plaintiff initiated steps to get the decree set aside and the same is pending; that item No.1 of ‘B’ schedule property is in the custody of defendant Nos.2 and 3 and item No.2 is in the custody of defendant No.4; that defendant No.1 is trying to claim the entire amounts lying with other defendants. Hence, suit was filed. 4. The suit is contested by defendant No.1 by filing written statement. Hence, suit was filed. 4. The suit is contested by defendant No.1 by filing written statement. It was contended inter alia that Subramanyam Achari during his life time executed a registered Will on 28.02.1992 bequeathing the properties to defendant No.1 (life interest) and thereafter vested the same in favour of G. Sreenivasulu; that Subramanyam Achari filed OP No.17 of 1989 for divorce and since plaintiff did not contest the same, ex parte decree was passed on 21.09.1992; that plaintiff filed I.A.No.849 of 1994 to set aside the ex parte decree and later it was transferred to Piler and it was renumbered as I.A.No.408 of 1996; that since plaintiff did not prosecute, it was dismissed on 23.08.1996; that after long lapse of time, after the death of Subramanyam Achari, the plaintiff filed I.A.No.171 of 1997 to condone delay in filing petition to set aside the dismissal order passed in I.A.No.408 of 1996 and eventually prayed the Court to dismiss the suit. 5. With the above pleadings, the parties went to trial. Revision petitioners impleaded themselves as defendant Nos.5 and 6 by filing I.A.No.385 of 2017. Later they filed additional written statement. Pending the suit defendant No.1 died on 14.12.2018. I.A.No.64 of 2019 was filed by the petitioners/defendant Nos.5 and 6 to recognize them as legal representatives of the deceased and the same was allowed on 22.04.2019. 6. Defendant No.6 filed affidavit in lieu of chief examination on in the year 2017. He was cross-examined and eventually evidence was closed on 23.11.2021. After completion of arguments on behalf of defendants on 06.12.2021, the matter underwent three to four adjournments for defendants’ arguments. As per the record, court below also imposed conditions. At that point of time, defendant Nos. 5 and 6 filed (1) I.A.No.35 of 2022 under Order VIII Rule 1(A) and Section 151 of CPC to receive documents, (2) I.A.No. 36 of 2022 under Order 18 Rule 17 and Sec 151 CPC to recall D.W.1, (3) I.A.No. 37 of 2022 under Section 151 CPC to reopen defendants evidence, (4) I.A.No. 38 of 2022 under Sec 151 CPC to receive Additional Chief Examination and (5) I.A.No. 39 of 2022 under Order 18 Rule 17 to recall P.W.1. 7. In the affidavit filed in support of the petitions in I.A.Nos. 7. In the affidavit filed in support of the petitions in I.A.Nos. 36, 37 and 38 of 2022, it was contended inter alia that defendant No.1 executed registered gift deed, dated 03.08.2008 and registered Will dated 19.04.2006 in favour of the petitioners and that defendant No.1 died on 14.12.2018; that after the death of defendant No.1, petitioners were added as defendant Nos.5 and 6; that during cross-examination of DW1, Court did not mark the documents; that some documents were not filed by over sight; that some of the documents were not filed by defendant No.1 and thus prayed the Court to permit them to file documents. 8. Respondent/plaintiff filed counter and opposed the application. It was contended inter alia that petitioners themselves filed I.A.No.385 of 2017 under Order I Rule 10 of CPC and came on record as defendant Nos.5 and 6. They filed separate written statement. Defendant No.6 was examined as DW1 before the death of defendant No.1 and in fact he filed chief affidavit in lieu of examination on 21.07.2017. His cross-examination was completed and the evidence was closed on 23.11.2021. Arguments on behalf of the plaintiff were closed on 06.12.2021. At request of learned counsel for the defendants, the matter was posted for arguments to 03.01.2022, thereafter to 21.01.2022, 31.01.2022 and 07.02.2022. On 07.02.2022, there was no representation and hence, the matter was adjourned to 18.02.2022 with a conditional order. At that point of time, these applications were filed to recall DW1, reopen evidence of DW1 and to receive documents and no reasons were explained. These applications are filed only to drag on the proceedings and prayed to dismiss the petition. 9. The trial Court by common order, dated 10.03.2022 dismissed the applications. Aggrieved by the same, revisions are filed. 10. Separate orders were passed in I.A.Nos.35 and 39 of 2022. 11. Heard both sides. 12. Learned counsel for the petitioners would contend that petitioners being legal representatives of defendant No.1 came to know about the documents sought to be received and hence, they filed these petitions seeking leave of the Court. He would also further contend that the purpose of filing of the petition is to receive some documents, which have a bearing in deciding the dispute between the parties. He would also contend that the petitioners assigned proper reasons. He would also further contend that the purpose of filing of the petition is to receive some documents, which have a bearing in deciding the dispute between the parties. He would also contend that the petitioners assigned proper reasons. Learned counsel for the petitioners relied upon judgment of the Hon’ble Apex Court reported in Sugandhi (dead) by Lrs. & Anr. Vs. P. Rajkumar rep. by His Power Agent Imam Oli, 2020 10 SCC 706 . 13. On the other hand, learned counsel for the respondent while supporting the order of the trial Court would contend that to drag on the proceedings only, the above petitions are filed. Petitioners in fact made wrong statement on oath. Petitioners filed the application in the lower Court without arraying other defendants to the suit as parties and thus, prayed to dismiss the revision. 14. The suit O.S.No.52 of 2009 was filed by the plaintiff for declaration and partition, defendant Nos.5 and 6 came on to file by filing I.A.No.385 of 2017 under Order I Rule 10 of CPC. They also filed additional written statement long back. Along with written statement, no documents were filed. 15. Defendant No.6 filed affidavit in lieu of chief examination on 21.07.2017. Eventually the evidence of defendants was closed on 23.11.2021. Arguments on plaintiff side were completed on 06.12.2021. The suit was adjourned for defendant arguments to 03.01.2022. Thereafter the matter was adjourned to 21.01.2022, 31.01.2022, 07.02.2022 and to 18.02.2022. 16. In the affidavits filed in support of the petitions, common averments made. Petitioners took different and inconsistent pleas (1) that Court did not mark the documents and (2) that by mistake the documents were not filed. The documents sought to be filed are, Will executed by defendant No.1, death certificate, copy of order in SOP, copy of examination of PW1 in SOP and cross of RW2 in SOP. Regarding SOP, there is no pleading in the written statement filed by defendant No.1. Defendant Nos.5 and 6 filed written statement long back. Going by the record, the evidence of defendants was closed on 23.11.2021. Nothing is forthcoming in the affidavit as to when defendants could secure those documents. No reason was assigned as to why those documents were not filed along with the written statement or at the time of cross examination. 17. Defendant Nos.5 and 6 filed written statement long back. Going by the record, the evidence of defendants was closed on 23.11.2021. Nothing is forthcoming in the affidavit as to when defendants could secure those documents. No reason was assigned as to why those documents were not filed along with the written statement or at the time of cross examination. 17. Apart from that the conduct of the defendants in not arguing the matter though the matter underwent four adjournments shows that the present application is filed only to drag on the proceedings. 18. The facts of the case in Sugandhi (dead) by Lrs. & Anr. Vs. P. Rajkumar rep. by His Power Agent Imam Oli are that when the matter was posted for evidence of the defendant an application was filed seeking leave to produce certain documents. The trial Court dismissed the same and the same was confirmed by the High Court. The Hon’ble Apex Court considered all the aspects and allowed special leave petition. In fact the Hon’ble Apex Court also recorded a finding that in the application cogent reasons were assigned for not producing documents along with the written statement. 19. Whereas in the case on hand, the applications to recall DW1, reopen defendants’ side evidence and to receive additional chief examination were filed, as stated supra, after completion of plaintiff’s arguments and after the suit underwent four adjournments for defendants’ arguments. The affidavit also doesn’t contain any valid reasons as to why they were not filed earlier. 20. The Hon’ble Apex Court and this Court time and again cautioned that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. However, the Courts must see the reasons assigned for not producing the documents as also the conduct of the party. As observed supra, the conduct of the petitioners is at large. Petitioners intend to drag the suit by filing number of interlocutory applications without advancing arguments. 21. It is also pertinent to mention here that in the affidavit petitioners contended that Court did not mark the documents and later contend that documents were not filed by mistake and oversight. Thus, petitioners went to the extent of blaming the Court that court did not mark the documents. 22. 21. It is also pertinent to mention here that in the affidavit petitioners contended that Court did not mark the documents and later contend that documents were not filed by mistake and oversight. Thus, petitioners went to the extent of blaming the Court that court did not mark the documents. 22. Apart from that as observed by the trial Court, the defendants did not choose to array the other defendants as party respondents to the petition. 23. In view of the above discussion, in the considered opinion of the Court, the common order passed by the Court below does not suffer from any illegality warranting interference of this Court under Article 227 of the Constitution of India. Hence, this revision is liable to be dismissed. 24. Accordingly, this Civil Revision Petitions are dismissed at the stage of admission. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.